WHEN A LAW FIGHTS A LAW

A century-old mining act permits almost anyone to grab off a chunk of public lands for his own purposes. Now it has come in direct conflict with the fledgling Environmental Act. A legal showdown is imminent

Those encountering the Mining Law of 1872 for the first time find it an incredible act. Literally, they do not believe such a law can exist. Yet there it is on the books, giving—to industry or any citizen—license to take over huge tracts of the nation's public lands.

Before the act was passed a hundred years ago there was no national mining law, but there was a lot of mining and passion and money tied up in mineral exploration and exploitation. Unable to start afresh, or believing it politically imprudent to do so, the Congress simply collected most of the traditions, practices and local laws then current in the Western mining country, roughly codified them and declared them the law of the land. The resulting statute, with all its vagaries, loopholes and contradictions, more or less defies summarization. What follows is simply a listing of those of its provisions that prominently affect the country's public lands.

•The law provides that on most of our public lands (virtually all of the 450 million acres of the Bureau of Land Management, the 140 million acres under the jurisdiction of the U.S. Forest Service and even on portions of our national parks and federal wildlife refuges) any American may stake a mining claim. To do so he simply marks off the claim area and then registers its location at a county courthouse where he must pay a token fee (in most states the charge is about $1.50 per claim). Claims are usually 20 acres in size but a man may stake as many of them as he wants. He is not required to ask permission of a public lands agency, e.g., the Forest Service, before staking the claim. After he has done so, he is not required to inform the agency where his claim is or what he plans to do with it.

•Having staked a claim on public lands, the claimant can immediately begin mining operations. He may erect living quarters on the claimed land for himself and his employees. To facilitate mining operations he may timber the land, raise crops, pasture livestock on it and make use of its water resources. He may not be denied access to his claim and can construct a road—anything from a donkey trail to a paved highway—to it. He must obtain a permit from the Forest Service for his road, but the agency cannot deny the permit, only require that the builder meet certain specifications.

A century-old mining act permits almost anyone to grab off a chunk of public lands for his own purposes. Now it has come in direct conflict with the fledgling Environmental Act. A legal showdown is imminent

•A mining claim, though it is on public lands, may be sold or traded for private gain. No federal taxes are paid on a claim since the land theoretically belongs to the public.

•In general there are only two ways in which a claimant can lose his land. If he fails to make token ($100 worth) improvements on the claim each year, another prospector may restake the land and claim it for himself. Secondly, a claimant may lose his land (but, on the other hand, may gain almost perpetual use of it) through validation proceedings. Under this process a public-lands agency sends a mineral examiner to look at the claim. He makes a report of his findings to the Bureau of Land Management, a division of the Department of the Interior. If it appears that a "prudent man" can conduct a profitable operation on the claim, it is validated, which means the claim holder can do more or less anything he wants with it. If, on the other hand, the mineral examiner does not find evidence that a prudent man could turn a profit, the BLM will invalidate the claim. The miner must leave it and the land reverts to the public. However, a miner whose claim has been invalidated may appeal the BLM decision, first through a series of administrative tribunals in the Department of the Interior and from there to the federal courts. Large mining companies usually ask that their claims be validated prior to commencing operations so as to avoid future disputes. However, this is not necessary. In effect, a claim is treated as valid until the BLM declares it invalid. Agencies do not enter into these proceedings lightly as they are costly in terms of money, manpower and time. Even an uncontested invalidation case may take 18 months and a hard, messy one may drag on for a decade. Finally—and most ironic of all—the day after a claim is invalidated, another would-be miner may restake it.

•A claim holder may also patent his land. He simply applies to the BLM for the patent and provides evidence that he can make a profit from the land. The BLM then patents his claim, which means that the land becomes his private property—the patent being a valid land deed. In theory virtually all of our national forest land is open to being patented; and, in fact, hundreds of thousands of acres have in this way been transferred to private control.

The mining industry, by whom and for whom the Mining Law of 1872 was created, believes it to be a splendid law and that any tampering with it will inevitably result in the destruction of the American way of life. The industry is, however, very cautious about making public statements on the controversial questions being raised these days by land managers, environmentalists and lawyers. Many of these people feel the mining law has created devastating land problems and abuses. For example:

The law not only permits but encourages (by giving subsidies in the form of virtually free land) spectacular and speculative exploitation. Millions of acres of land are vulnerable to despoliation, not because they possess minerals of value but because a miner has a hunch they might, and it costs him little or nothing to play his hunch.

If a mining claim can be regarded, as it often has been in the courts, as giving its holder de facto ownership of public lands, then no public-lands agency can be sure exactly how much land it controls or how it can manage its holdings. There may be as much as 20 million acres of national forest lands encumbered by mining claims. At least, that is one estimate. The uncertainty about just how many acres are involved arises from the fact that the claimant does not need to tell the land agency when he claims land from it.

Perhaps the most notorious abuse of the mining law has had nothing to do with either real or hunch mining. For generations Westerners who wanted a nice secluded site for a summer cabin, real-estate development, resort or, in a few cases, a gambling casino or house of infamy would simply stake a claim or claims in a national forest and proceed to occupy and use the land as they so desired. During the last decade the Forest Service has been trying to crack down on some of these "illegal occupancy" cases and retrieve some of this fraudulently claimed land. However, given the ubiquitousness of the practice (over 100,000 claims have been examined so far) and the limited resources of the agencies involved (the Forest Service employs only 40 mineral examiners, the BLM about 60), the best guess is that it will take another 20 years to clean up just the current cases.

For those who think it a bad statute, the worst feature of the Mining Law of 1872 is that it gives public agencies no real autonomy in the use of their own land. No matter how valuable a tract may be for grazing, timbering, recreation, no matter what its water, wildlife, wilderness or scenic values may be, a miner, if he wants the land, is entitled to take it. No other special-interest group has been so favored. Ranchers and lumbermen have been granted certain privileges over the years on public lands, but even they must secure permits and pay fees. The miner needs nothing under the law of 1872.

Currently the Forest Service is involved in a series of major disputes in which miners, attempting to exercise their rights under the mining law, are threatening valuable Forest Service resources—the home waters of the rare cutthroat trout in the Humboldt Forest of Nevada; the entire White Cloud mountain complex in Idaho's Sawtooth Forest; the Stillwater area in Montana's Custer National Forest. These are the most prominent of the current confrontations between Forest Service and mining interests.

In the final analysis, however, another dispute—and the solution of it—may prove more consequential. This case, relatively small in terms of land and resources, involves Ash Canyon in the Huachuca Mountains of southern Arizona. Here a few forest rangers are trying a new approach in defense of their lands.

The Huachucas are little-known mountains but in some respects they are unique. Rising at the Mexican border, they extend 25 miles northward, with their highest peaks soaring to about 9,500 feet. Surrounding the Huachucas is the Sonoran Desert. What makes these mountains singular is their range of climate. There are in the foothill canyons microenvironments that are tropical and more than a mile up on the mountain peaks ones that are subarctic. In consequence the flora and fauna is unusually varied. A greater assortment of reptiles, birds and mammals can be found in the Huachucas than in any comparably sized area in the U.S.

By and large the mountains are still wilderness. There has always been some ranching, lumbering and mining but, due to the difficult terrain and the lack of resources thereabouts, the mountains have not really been disturbed. Most of the range belongs to the Forest Service, being part of the mammoth Coronado National Forest. Just two rangers are assigned to oversee the Huachucas and adjacent valleys, a 300,000-acre chunk of land. The supervisor is Adrian Hill, a Forest Service veteran, and his assistant is Chuck Shipp, a young ranger who was assigned to the district last June. The area also has two full-time nonprofessional maintenance men. These four men are responsible for everything that goes on in the district—fighting fires, erosion and floods, issuing grazing and camping permits, enforcing the provisions of the permits, cutting trails, clearing springs, building impoundments, locating lost hunters and hikers, assisting miners.

The two regular rangers spend much of their time simply driving, horsebacking and hiking about their vast domain trying to find out what is happening within it. Last July 29 while making a routine patrol along the eastern flank of the Huachucas, Chuck Shipp discovered what looked like trouble in Ash Canyon, one of the many canyons that scar and torture the sides of the Huachucas.

An elderly prospector named Bill King, who had held some claims in Ash Canyon and had pecked away at them for beans for more than a quarter of a century, had leased his holdings and become associated with one Alvin C. Hartley of Los Angeles and Las Vegas. Both men have a certain amount of notoriety. King had come into possession of his claims after killing an early partner, James Kelly. He was acquitted of the murder but retains the reputation of being a formidable gunman. He wears a six-shooter on his belt and normally cradles a .30-30 over his arm. Over the years King has run off more than one innocent visitor to the section of national forest on which he holds mining claims. His cohort Hartley is a bit less colorful but has had trouble with the law, too. He is on parole from California and has convictions for receiving stolen property and carrying a concealed weapon.

At their first meeting Hartley told Chuck Shipp that he had organized something called Cochise Mining and Exploration, Inc. He planned, he said, with the advice of his technical expert, Bill King, to take a lot of gold out of Ash Canyon, build some roads through it to the west side of the mountains, strip 150 acres for placer operations and construct a placer mill and wells.

"Right from the beginning this whole Ash Canyon thing really bothered us," recalls Shipp, who by temperament and age is an environmental activist. "In the first place there is no history of productive mining in the Huachucas, no mineral survey that justified the kind of operation Hartley was talking about. But the mountains have very important natural, wildlife and recreational values. It seemed almost criminal to tear them apart for marginal mining operations. Also, it seemed to us that this scheme in Ash Canyon had the smell of a promotion, not a legitimate mining operation. We got the feeling that Ash Canyon—and maybe more of this range—was to be gutted not for gold but for a few photographs in a stock prospectus."

This latter suspicion was confirmed by an investigation conducted by the Arizona Corporation Commission. Last winter the commission found that Hartley, an unregistered stock salesman, had peddled unregistered shares in Cochise Mining and Exploration. It ordered Hartley to cease and desist in this felonious activity, but the order was of an empty, post-factum sort. Late in November, Hartley left the Huachuca scene for Mexico, taking with him a hundred glossy Cochise stock certificates. He has not been seen since.

Between the end of July and mid-December, Shipp made 38 trips to Ash Canyon (on one visit he was unable to proceed up a Forest Service road, being blocked by Bill King and his six-shooter). Cochise Mining and Exploration began building a placer mill and, more important, cutting without permit a 1½-mile, 130-foot-wide road up Ash Canyon across Forest Service land. Shipp was convinced that the work already done had seriously and adversely affected drainage patterns in the canyon. It also seemed obvious to the ranger that if Hartley should return and settle his curious financial and legal problems, he could and would mount new operations in the Huachucas that would further ravage the land.

Shipp telephoned Ray Russell, the director of mining and recreation resources at the Tucson headquarters of the Coronado National Forest. "Ray had been following the case," says Shipp, "and I guess I told him in effect that they had sent me down here to protect a public resource and I didn't feel I had any authority to do so. We'd lost a good part of Ash Canyon and the chances were we'd lose more. I asked Ray if he had any suggestions. I also made a suggestion. We'd all been getting directives about the new Environmental Act and I asked Ray if there was anything in that which might help us. He said he would take a look."

Russell looked, and then he decided to do three things. He started proceedings leading toward a trespass hearing in federal court, charging King and Hartley with cutting a road without permit in Ash Canyon. He got in touch with the nearest Forest Service mineral inspector and asked that the King-Hartley claims be examined to see if they could be invalidated. Both of these actions were more or less conventional ones under the old rules of the Forest Service-Mining Law game. However, the third step Russell took, or rather suggested be taken, was extraordinary, something that nobody within the Forest Service had ever thought of doing before. Russell asked that the Forest Service seek a federal injunction, based principally on the provisions of the National Environmental Policy Act of 1969 (hereafter NEPA), to halt all mining operations in Ash Canyon while a study of the environmental impact of such operations was made.

"I am not a lawyer," Russell says, "but it seems to me under Section 102 of NEPA if any land changes are contemplated we are required to make an environmental impact study before the changes are permitted. So I applied this to Ash Canyon. The mining operations that King and Hartley were talking about there would certainly result in environmental changes. O.K., so we are required to make a study on the consequences of these changes. This kind of study will cost some money, tie up a lot of men and take a lot of time. Suppose we start such a study. The Mining Law and the Environmental Act appear to be in basic conflict. I thought maybe Ash Canyon would be a good place to find out where we stood legally—which law we should obey."

Clyde Doran, the Coronado National Forest supervisor, approved Russell's recommendation that the service seek a NEPA injunction in Ash Canyon and started the request for such action through departmental channels. Also, before paper work on the recommendation was completed, Doran made the matter public. He told the local press about Russell's proposal—that they were going to try to get permission to do something absolutely new, challenge the Mining Law of 1872 on the grounds it was in conflict with the Environmental Act.

Change, especially precedent-setting action, unsettles all bureaucracies, and the Forest Service is no different. If the service pushed for an injunction and all that it implied, it would certainly become involved in a bitter battle with the mining industry.

"The whole question is of special interest to us in the Coronado," Clyde Doran says, "since there are indications we may have more rather than less mining activity here in the future." It is something of an understatement when Doran says there are "indications" of future mining ventures and problems in southern Arizona. During the past 18 months it is estimated that some 250,000 acres of Doran's 1,800,000-acre forest have been staked in claims by giant mining concerns—Anaconda, Hanna Mining, Hecla, Kerr-McGee. When old claims and new claims by small operators such as Hartley and King are added, it is likely that somewhere between a third and a half of the Coronado is not, in a practical sense and according to the Mining Law, a public forest at all—it is a potential mine.

The reason for this sudden interest in southern Arizona mineral deposits is gossiped about openly within the mining community. The big operators are fearful to certain that they will soon lose control over major foreign holdings—that their mining properties in Chile, Peru and elsewhere in South America will be nationalized. Therefore, they are looking for domestic mines, particularly in Arizona where there are minerals and favorable tax laws. These political and economic factors, along with the ever-increasing demand for metal products, make it almost certain that mining pressure on national forest lands will markedly increase during the next few years. They also explain why land managers like Doran believe that if the Forest Service does not now get additional authority to control, direct and tame the exploiters, they may shortly have very little land left to manage.

The National Environmental Policy Act to which Russell and Doran have turned in the Ash Canyon case is, like the Mining Law, not well understood, but for different reasons. It is so new that few are certain whether it is a real law or simply another pious statement of good intentions.

"I have a theory," says Malcolm Baldwin, a young lawyer employed by the Conservation Foundation, one of the most respected organizations along Washington's Environmental Row (a collection of offices and chambers in the vicinity of DuPont Circle, lying mostly between Massachusetts Avenue and the National Rifle Association). "Until a law is fought over, either before it is passed or later in the courts, nobody really knows what it means. There have been few suits to date involving NEPA. It was written mostly by Scoop Jackson's staff and there was no great debate. You didn't have, say, the American Mining Congress and the Sierra Club at each other's throats when it was being considered. In fact, nobody paid much attention to it—it just eased through. This business in Arizona may provide a significant test case. Obviously if the Forest Service has enough nerve to ask for a NEPA injunction, it could be a formidable weapon."

It is said that a motto of the Devil is "Let's organize this thing." If true, his Satanic Majesty probably created the concept of the Regional Office. Regional Offices—religious, educational, military, corporate, federal—neither sow nor reap. They are not concerned with ideas and policy, which is the business of Headquarters; nor with action—chasing bulldozers out of canyons—which is the work of the field staff. However, they are exquisite instruments for muddying ideas until they cannot be translated into action, for muffling action so that it cannot influence ideas or policy. The function and ambition of a Regional Man is to hide dirty linen, keep boats from rocking and at all times present a very low profile.

The Albuquerque office of the U.S. Forest Service is not that different from regional offices every where. Having been brought into the Ash Canyon case during the second week of January, Albuquerque did what Regional Offices do best—sat down tight on the whole affair. The request for a NEPA injunction looked as if it would not be approved, disapproved or bucked on to Washington, where decisions are made. In what passed for furious action at this administrative level, the Regional Office promised to send a Regional Attorney to Tucson in late February to discuss with the Coronado foresters the implications of a NEPA injunction. The first meeting was postponed but the conference was finally held a few weeks ago. The attorney is now in Washington and is said to be formulating his case. So that is how the matter officially stands at the moment.

Fortunately, the Ash Canyon affair has broken out of channels. While anonymous Albuquerque men were brooding over the embryonic case, word of its imminent hatching spread. On March 17 Arizona Congressman Morris Udall submitted a bill to the House of Representatives that would drastically revise the Mining Law of 1872.

Ash Canyon and the issues it raises, the challenge to the Mining Law, the question of the public right to regulate use of public lands, has become too large and knobby to be stuffed back in any Regional Man's bag. Like it or not, injunction or not, Ash Canyon has become a case to which we are all party. The proceedings promise to be long and difficult.

PHOTO

THE DECIDING BATTLE MAY BE WAGED OVER ASH CANYON IN ARIZONA'S HUACHUCA MOUNTAINS (ABOVE)